NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: EMAD AZIZ MASOUD ALFAHEL; 

LINA NADIM FAHEL, 

Debtors. 

______________________________ 

AIRPORT BUSINESS CENTER, 

Appellant, 

 v. 

EMAD AZIZ MASOUD ALFAHEL; LINA 

NADIM FAHEL, 

Appellees.

No. 23-60026 

BAP No. 22-1219 

MEMORANDUM*

Appeal from the Ninth Circuit

Bankruptcy Appellate Panel

Gan, Faris, and Brand, Bankruptcy Judges, Presiding

Submitted May 16, 2024**

San Francisco, California

Before: S.R. THOMAS, CALLAHAN, and SANCHEZ, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

MAY 20 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appellant Airport Business Center (ABC) appeals the Bankruptcy Appellate 

Panel’s (BAP) order affirming the bankruptcy court’s order granting Debtors Emad 

Masoud Alfahel and Lina Nadim Fahel’s motion to avoid the judicial lien of ABC 

impairing their residence. “We review decisions of the BAP de novo, and we 

apply the same standard of review that the BAP applied to the bankruptcy court’s 

ruling. In doing so, we review conclusions of law de novo and findings of fact for 

clear error.” In re Brace, 979 F.3d 1228, 1232 (9th Cir. 2020) (internal citations 

omitted). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. 

1. ABC argues that Debtors should have been barred from filing a third 

motion to avoid a judicial lien under Federal Rule of Civil Procedure 41(a)(1)(B), 

which applies to contested bankruptcy proceedings through Federal Rules of 

Bankruptcy Procedure 9014 and 7041. See Matter of York, 78 F.4th 1074, 1087, 

n.5 (9th Cir. 2023). Under Rule 41(a)(1)(B)’s two-dismissal rule, a plaintiff’s 

second voluntary dismissal of the same claim “operates as an adjudication upon the 

merits,” foreclosing a party’s ability to refile the same claim a third time. See 

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001). 

However, a plaintiff may only voluntarily dismiss an action without leave of court 

by filing a notice of dismissal before the opposing party files an answer or a 

motion for summary judgment, or by stipulation of the parties. Fed. R. Civ. Proc.

41(a)(1)(A). 
3 

As the BAP noted, applying the two-dismissal rule in a contested bankruptcy 

proceeding poses a unique challenge because no “answer” is required. See Fed. R. 

Bankr. Proc. 9014(a) (“In a contested matter not otherwise governed by these rules, 

relief shall be requested by motion” and “No response is required under this rule 

unless the court directs otherwise.”). The BAP concluded that in the context of 

contested matters, “a response or objection to a motion for relief constitutes an 

‘answer’ for purposes of Rule 41(a)” because it “serves the same purpose as an 

answer to a complaint: it puts the merits of the dispute in contention.” We agree. 

A written response to a motion for relief in a contested bankruptcy matter serves as

the equivalent of an answer for purposes of applying Rule 41(a).1 

Given this context, the BAP did not err in concluding that Rule 41(a)(1)(B)

does not bar Debtors’ third motion to avoid a judicial lien. By the time Debtors 

filed a notice withdrawing their first motion before the bankruptcy court, ABC had 

already filed an answer by way of objection to the motion. Debtors could not 

dismiss the action under Rule 41(a)(1)(A) without a court order or stipulation from 

the parties, neither of which occurred. See Kamal v. Eden Creamery, LLC, 88 

F.4th 1268, 1279, n.4 (9th Cir. 2023). Debtors’ first motion was therefore never 

1 Several bankruptcy courts have reached the same conclusion. See, e.g., In re 

Dworek, 589 B.R. 267, 272 (Bankr. W.D. Pa. 2018); In re Vale, 180 B.R. 1017, 

1021 (Bankr. N.D. Ind. 1994); In re Mocella, 540 B.R. 342, 344 (Bankr. N.D. Ohio 

2015); In re Delima, 561 B.R. 660, 661 (Bankr. E.D. Va. 2016).
4 

properly dismissed. 

ABC accepts that its response was equivalent to an answer but contends that 

we should nevertheless apply Rule 41(a)(1)(B) because it was subjected to the 

same claim three times. After all, the bankruptcy court and the parties treated the 

first and second dismissals as terminating the underlying contested matter. ABC 

urges us, in effect, to overlook the plain language of Rule 41(a)(1). This we cannot 

do. Because ABC filed an “answer” to the first motion, Debtors’ later withdrawal 

of that motion could not constitute a “notice of dismissal” under the plain terms of 

Rule 41(a)(1)(A). See Am. Soccer Co. v. Score First Enters., 187 F.3d 1108, 1112

(9th Cir. 1999) (in construing voluntary dismissals under Rule 41, “[t]he literal 

terms of the rule apply.”).

2

 

2. ABC argues that the BAP erred by including usurious interest on a 

separate promissory note against the residence. However, as a non-borrower on 

the promissory note between Emad Alfahel and Osama Atallah, ABC concedes 

that it does not have standing to assert usury as a defense. See Roes v. Wong, 81 

Cal. Rptr. 2d 596, 598 (Ct. App. 1999) (holding that the defense of usury is 

personal to the borrower or the borrower’s representative). And while ABC is 

correct that “the inclusion of a usurious interest provision. . . .results, in effect, in a 

2 Because Debtors’ first withdrawal was not a proper dismissal under Rule 41, we 

do not address whether Debtors’ second withdrawal was a proper dismissal. 
5 

note payable at maturity without interest,” Epstein v. Frank, 177 Cal. Rptr. 831,

837 (Ct. App. 1981), ABC’s “burden of proof” argument is merely a usury defense 

by a different name. 

AFFIRMED.